What do we do about Same-Sex Marriage?

Discussion in 'Archive: The Senate Floor' started by Obi-Wan McCartney, Dec 4, 2003.

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  1. Obi-Wan McCartney Jedi Grand Master

    Member Since:
    Aug 17, 1999
    star 5
    In my Religion and the Constitution class, we discussed the defense of marriage and the implications of Lawrence v. Texas.

    Now, particulary, our teacher brought in a transcript of Howard Dean's appearence on Hardball at Harvard, where Mathews demanded Dean explain the difference between marriage and civil union. Legally, Dean admitted, there was no difference. Why then, Mathews asked, was there such a huge issue over the name?

    Dean answered, it's because the institution of marriage is sacred to a lot of religous people in this country.

    People's religous views are valid and important. However, our teacher pointed out the famous constutional case of Lemon v. Kurtzman that is still the common law today.

    For any statute to be constitionally valid under the 1st amendment, it must satisfy a three pronged test:
    1. There must be a secular purpose.
    2. The law cannot have the primary effect of advancing religion.
    3. There cannot be excessive entanglement of government and religion.

    If Civil Unions are valid, then the argument can be made that barring the constitutional amendment, marriage is invalid. The reason? The first two prongs of the lemon test. If the only reason for separating marriage and civil unions and marriage is based on the idea that there is a religously grounded belief that marriage is between a man and a women, marriage being separate from civil unions does not pass the lemon test. Furthermore, if we are creating two separate institutions for the same legal purpose, we run into Brown problems, the separate but equal prohibition doctrines.

    The students in the class had a variety of different beliefs regarding marriage. Some felt that allowing marriage constitutes a free excercise violation, infringing on religous freedoms by forcing marriage to include gays againts religous doctrine. But typically, accomodation cases have involved situations where a religous right of a person was being denied, not that the granting of a right to an unreltaed person infringed on that right.

    Part of the problem was that it was nearly impossible for people to make convincing arguments against gay marriage without employing religous morality.

    Therefore, the professor put forth this notion that was surpringly the compromise that even the conservatives in the class signed on to:

    Abolish government marriage. The only recognition the government endorses is civil unions. The sacred institution of marriage can therefore ONLY be obtained through the religous institutions. Preserve marriage as solely a sacred religous institution. This satisfies the third prong of the lemon test by removing the entanglement of government and religion.

    This idea actually seems to make a lot of sense to me. Those people that want marriage to be preserved would get their wish. Those that want equal rights for all citizens would get their wish. The constitutional issue would be nullified by the government removing itself from the institution of marriage, leaving it to be a solely sacred religous institution.

    What do you think? I was weary at the idea because I thought conservatives would never go for it, but those ones that spoke up in my class agreed, and I was out having a drink tonight and I was explaining this idea to my friend, and the bartender stepped in and said "hey, I'm a conservative, and I actually agree with that idea."

    Thus, marriage is preserved, and everyone is given equal rights.

    KK EDIT: Title change, by request.

    KK EDIT 2: Locking by request.
  2. Jediflyer Jedi Master

    Member Since:
    Dec 5, 2001
    star 5
    I would say that is a good solution.

    The Christians won't want to say the government should keep calling it marraige because they won't like the necessity of government interferring in their religion, but I am sure they will find some way to oppose such a change.
  3. Stackpole_The_Hobbit Jedi Master

    Member Since:
    Jul 31, 2002
    star 6
    *insert chorus of 'Why didn't I think of that?!'s here* :p
  4. farraday Jedi Knight

    Member Since:
    Jan 27, 2000
    star 7
    I've already thought about it and you fail to address some points.

    With no reproductive requirement civil unions in effect becomes a economic unions.

    For instance what would be the effect of allowing two CEOs to in effect merge their companies by becoming part of a civil union? Certainly the spousal privledge would come in handy.

    I am also confused as to what purpose, other then economic, civil unions serve when divorced(aha) from any non-secular meaning.

    Certainly the potential for abuse is there now, as well as the actuality of it, but I can not help but feel completely seperating it would only make the abuse more prevelant.

  5. Obi-Wan McCartney Jedi Grand Master

    Member Since:
    Aug 17, 1999
    star 5
    What? What are you talking about? There is no reproductive requirement to marriage?

    What abuses could be made that couldn't be made to regular marriage?

    Hello, it would be exactly the same legally as civil unions in Vermont or state civil marriage license now. Corporations what? There is no conflict.

    I mean, if you get married by your Church, the government would recognize that as a valid civil union. All the secular purposes of marriage would be preserved, I don't see what the problem is or what the potential for abuse is.
  6. Moriarte Jedi Knight

    Member Since:
    Aug 17, 2001
    star 5
    The way I see it, whatever sexual orientation you are, you can get a civil union which is just a cohabitation recognized under the law which has rights and privileges attached to it.

    Marriage, however, is a religious notion and the definition of marriage is up to the multitude of churchs and faiths. If homosexuals find a religion that defines marriage in that way, fine. If not, also fine. People can have any belief they choose. It does not necessairly mean that that person is bigoted. I hate having to bring that up every time. But religions and faiths should not be forced to recognize a State definition of marriage. That is not for the State to decide. Marriage should also stay counted as a civil union under the law, just with the religious context added in.

    Simple.


    Mistryl's Paramour
  7. Aunecah_Skywalker Jedi Knight

    Member Since:
    Mar 25, 2002
    star 5
    Marriage, however, is a religious notion and the definition of marriage is up to the multitude of churchs and faiths.

    Actually, marriage isn't a religious notion. It's a social construction, just like pretty much any other union. A married couple from a different faith is still a married couple in the eyes of the Church, and vice versa. Just because marriages are done in a church doesn't mean that it is a "religious notion," IMHO.

    Aunecah
  8. farraday Jedi Knight

    Member Since:
    Jan 27, 2000
    star 7
    You're hopeless niave and completely short sighted if you can't see any problems at all other then getting conservatives on board.

    Lets not be simple here, rich famalies often marry thier children into other rich families to cement economic and social benefits. certainly it would save time if those in control of the finances could just enter into a civil union with one another.

    Certainly you and I OWM could be in a civil union with no real initial investment, no requirement of even seeing each other again but substantial reward.

    Of course that is possible now with a man and woman, however opening it up to all comers removes any pretense at a basic reproductive reasoning.

    And I would also like to know in this completely secular civil union society, what possible reasoning can there be to limiting a person to one at a time?
  9. Aunecah_Skywalker Jedi Knight

    Member Since:
    Mar 25, 2002
    star 5
    And I would also like to know in this completely secual civil union, what possible reasoning can there be to limiting a person to one at a time?

    Historical approach? Cultural identity? We certainly didn't have arguments about same-sex marriages before, but we do have them now. So, just because we are limiting civil unions to one person at a time doesn't mean that there are going to be people coming up three hundred years from now wanting to be with, uh, more than one person....

    Aunecah
  10. farraday Jedi Knight

    Member Since:
    Jan 27, 2000
    star 7
    Wanting to be with someone isn't the point. Civil unions don't require sexual contact to be binding.

    Furthermore, the very reasons you use to justify the limit of one per person are the same justifications for not allowing same sex unions.
  11. Moriarte Jedi Knight

    Member Since:
    Aug 17, 2001
    star 5
    If you open up to alternate forms of "marriage", you would also have to allow polygomy (which is having multiple mates by for both genders, not just a man and multiple women).

    Those people are discriminated against, why not open up civil unions to them?


    Mistryl's Paramour
  12. farraday Jedi Knight

    Member Since:
    Jan 27, 2000
    star 7
    That may or may not be a bad thing...

    But lets not be foolish here and pretend this is a "perfect solution" just because we're not considering anything wider then being fair.
  13. Aunecah_Skywalker Jedi Knight

    Member Since:
    Mar 25, 2002
    star 5
    farraday and Moriarte - Personally, I'm against people having more than one spouse, but if all the consenting parties agree (with the full knowledge of all costs - including certain bedroom problems - as well as the benefits), then I don't see anything wrong with it. That doesn't mean that parents suddenly would allow their children to do so, or the Church will be very understanding and sympathetic, but nevertheless, there is absolutely NOTHING wrong with it.

    And, Moriarte, if those people want to come and fight for their rights, yell and curse and go to the Supreme Court, then they can do that. The Supreme Court will do whatever it thinks is right. Unless they're fighting for that now (I don't know - correct me if I'm wrong), it's pointless to say open the civil union up to them.

    Aunecah
  14. Obi-Wan McCartney Jedi Grand Master

    Member Since:
    Aug 17, 1999
    star 5
    Farraday, you're hopelessly naive and completely short-sighted if you can't see that such language is unnecessary and detracts from civilized discourse. You want to debate, fine, poke all the wholes and raise all the issues you want, but you have a habit of incorporating unnecessarily personally insutling rhetoric, and I am asking you to try and restrain yourself.

    Furthermore, multiple unions would still be invalid under Reynolds v. United States. Although it arguable infringed on mormon religous rights, laws that infringe on religous rights aren't illegal unless they have solely a religous purpose, and the case was justified on secular grounds.

    As for abuses, I highly doubt that the CEO of [insert major corporation here] would decide to get a civil union with [insert other major corporation here], thus denying their ability to get married or to stay married to their wives. Plus, I'm pretty sure the investors would have a thing or two to say about it. All in all, it seems rather implausible to think this would be a rampant problem. I mean, hello, these people still want families and all that.

    I mean, consumation of the civil union would still be required just like with the old marriage laws, the government would simply rename it's recognition of the institution. And a civl union could still be for the benefit of families, as that's the whole point of the civil union in VT, to give gays economic AND family rights.
  15. Saint_of_Killers Jedi Youngling

    Member Since:
    Feb 18, 2001
    star 5
    You stole my idea, OWM.

    But ok, Farrie, you gots a point.

    So let's just call it marriage and say "cry more, bible thumper!". :D
  16. farraday Jedi Knight

    Member Since:
    Jan 27, 2000
    star 7
    I don't care about who is having sex with whom here, I'm worried about the social and economic problems which have to occur by throwing the secular benefits of marriage to anyone who wants to apply.

    There have to be limits on it. Those limits being reproductive is falling by the wayside, but that doens't mean there should be no limits.

    I can't imagine our legal system trying to get around spousal privledge as gang m,embers required new initates to enter into a civil union with the rest of the gang.

    Furthermore, multiple unions would still be invalid under Reynolds v. United States.

    I don't see how you can argue your point here and use Reynolds v. US in the same breath without being a raging hypocrite of completely uninformed.
  17. Moriarte Jedi Knight

    Member Since:
    Aug 17, 2001
    star 5
    While I will agree that not fighting for their belief keeps them discriminated against, that doesn't excuse the fact that polygamists are being discriminated against. And discrimination is wrong, correct?

    Even so, there needs to be standards to things, and the change of Marriage is a dangerous, volatile standard to mess with.


    Mistryl's Paramour

  18. Obi-Wan McCartney Jedi Grand Master

    Member Since:
    Aug 17, 1999
    star 5
    Like I said, civil unions would still have all the same protections and restrictions as traditional marriage, except the requirement that it be between a man and a women.

    Multiple civil unions are out for secular reasons. Excluding same sex marriage cannot upheld under the Lemon test.

    Also, that's the point, we aren't changing marriage, we are leaving it as a sacred religous institution.
  19. Aunecah_Skywalker Jedi Knight

    Member Since:
    Mar 25, 2002
    star 5
    Change is always a dangerous thing. But sometimes change is necessary.

    Aunecah
  20. farraday Jedi Knight

    Member Since:
    Jan 27, 2000
    star 7
    Don't be silly OWM, you can not provide a single secular reason to disallow civil unions.

    Other then a supreme court case which contains this gem
    Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people.


    And change may be neccesary but jumping onto whatever soemone tells you is the "perfect solution" without bothering to consider the problems involved is intellectually lazy and dishonest.
  21. Saint_of_Killers Jedi Youngling

    Member Since:
    Feb 18, 2001
    star 5
    I think the case could be made that the logistical problems of polygamy provide sufficient secular reason to disallow it.

    How about this: no marriages or civil unions endorsed by the government.
  22. farraday Jedi Knight

    Member Since:
    Jan 27, 2000
    star 7
    The logistical problems of two person marriages provide secular headaches already. And certainly any group willing to dash headfirst into this "solution" hasn't throught thigns through enough to consider that a reasonable answer.

    Can anyone give me any reasons we should have any secular civil unions or benefits for marriages?
  23. Obi-Wan McCartney Jedi Grand Master

    Member Since:
    Aug 17, 1999
    star 5
    You mean polygimous civil unions? Well, I'll be the first to admit that Reynolds was a terrible decision, but it's still the law of the land. If civil unions are legal, like they are in vermont and soon to be in Massachusettes, and maybe that domestic partnership thing from Cali.

    Are you saying that all the arguments for keeping polygamy illegal are based on religion? If so, then regardless of civil unions, polygamy must be allowed, that's really a separate issue. Off the top of my head, property rights and other issues along those lines are a concern regarding the privileges granted upon a civil union. I'll reject outright any similar claim made about traditional marriage v. civil union among same sex couples, there is no difference in issues or problems. I don't particularly want to let this thread get derailed by an argument on polygamy, if you want to discuss it in the polygamy thread I'll be happy to.

    Farraday, I see where you are going, but if you honestly can't think of or don't think there are any secular reasons for a civil union/marriage, then all that means is that marriage itself must be nullified and nothing can be given to replace it.

  24. farraday Jedi Knight

    Member Since:
    Jan 27, 2000
    star 7
    OWM you have the spectacular lack of recognition that this issue is broader then the blinders you'd have everyone wear.

    What you want is no less then the complete removal of any religious viewpoint from the question of government recognized personal partnerships. To try and turn polygamy into a seperate issue doesn't work.

    Furthermore, I still don't see where you responded to why a completely secular government should recognize any personal partnerships.

    Edit// That is indeed where your line of reasoning takes you. Religion is a part of peoples lives, therefore it is a part of the culture. To try and completely secularize government can not work because in a democratic soceity the peopel are the force behind government. You see the tension between religious beliefs and natual rights as a bad thing which can be "solved" by seperating the two, not realizing that both are part of the people which form the country and government. You can not cut the baby in half without cutting the population in twain as well.

    This isn't an issue to be solved, it's an issue to which compromise must be reached.
  25. Aunecah_Skywalker Jedi Knight

    Member Since:
    Mar 25, 2002
    star 5
    What you want is no less then the complete removal of any religious viewpoint from the question of government recognized personal partnerships.

    And what exactly is wrong with that :confused:

    Aunecah
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